tv [untitled] CSPAN June 23, 2009 1:30pm-2:00pm EDT
and as this process unfolds, it's important that the senate conduct its evaluation in a way that's honest and fair. and remembering that a nominee is often limited in his or her ability to answer complaints against them. so the time is rapidly approaching for the hearings. only nine legislative days between now and july 13 and there are still many records, documents, videos not produced that are important to this process. my colleagues and friends are asking me and they say, what have you found? what have your staff -- what evaluations have are you formed? what are your preliminary thoughts? and i've been somewhat reluctant to discuss these matters at this point in time as we continue to review the record, but in truth the confirmation process certainly must be conducted with integrity and care. but it's not a judicial
process. it's a political process. the senate is a political legislative body, not a judicial body. and it works its will and its members must decide issues based on what each member may conclude is the right standard of the right beliefs. and i've certainly not formed hard opinions on this nominee, but i've developed some observations and have found some relevant facts and have some questions and concerns. it's clear to me that several manners in cases must be carefully examined because they could review an approach to judging that is not acceptable for a nominee, in my opinion. i see no need not to raise those concerns now and discussing them openly can help our senate colleagues get a better idea of what the issues are and the public and that the nominee can see what the questions are now before the hearings start.
unfortunately, the record that we have is incomplete in key respects. it makes it difficult for us to prepare. and as i review the record, we do have, i am looking to try to find out whether this nominee understands the proper role of a judge. one who is not looking to impose personal preferences from the bench. and frankly, i have to say a follow-up on senator mcconnell's remarks, i don't think i look for the same qualities in a judge that the person who nominated her does, president obama. he says he wants someone who will use empathy. empathy to certain groups to decide cases. that may sound nice, but empathy towards one, is it not
prejudice towards the others? there are always litigants on the other side and they should have their cases decide on the law. and whatever else empathy might be, it's not law. so i think empathy, that standard, a preference standard is contrary to the judicial oath. this is what a judge declares when they take the office. i do solemnly swear that i will administer justice without respect to persons and do equal right to the poor and the rich, and that i will faithfully and impartially discharge and perform all the duties incumbent upon me. so i think that's the impartial ideal. that's the ideal of the lady of justice with the scales with a blindfold which we have always
believed in in this country and which has been the cornerstone of american jurisprudence. so what i've seen thus far in judge sotomayor's record and presumably so much of her views are the reason president obama selected her cause me person. -- concern, that the nominee will look outside the law and evidence in judging and that her policy preferences could influence her decisionmaking, her speeches and writings outside the court are certainly you have concern. some of which senator mcconnell mentioned. i'll discuss some other areas that are significant, also, i think. she has had extensive work with puerto rican legal defense and education fund. and been a supporter presumably of what it stands for, and as
we know it, her decision -- as to we know it. that's one of the matters i'll discuss a bit here. also, i will discuss her decision to allow felons, even those in jail, convicted, the right to vote, overruling long established state law. and some other matters that i will discuss, including the new haven firefighter's case. looking at the long association the nominee has with the puerto rican legal defense and education fund, an organization that i have to say is i believe clearly outside the mainstream of american approach to matters. this is a group that has taken some very shocking positions with respect to terrorism. when new york mayor david dinkens criticized members of
the radicalized puerto rican national defense and called them assassins because they shot at members of congress and been involved in i guess other violence, the fund of which judge sotomayor was a part criticized the mayor and said they were not assassins and said that the judge's comments were insensitive. the president of the organization continued explaining that they were fighting for freedom and justice. so i wonder if she agreed with that statement. and that his -- the mayor of new york's statements were insensitive. so these puerto rican nationalists reconstituted later into groups like the faln
which have recently had occasion -- we've discussed in depth to faln itself was responsible for more than 100 violent attacks resulting in at least six deaths. i find it ironic that once again we find ourselves discussing these murderous faln members. it was not long ago we were considering whether or not to confirm attorney general eric holder wanting to pardoning them and president clinton did. and now we find ourselves wondering about this nominee to the court and what her views are on these matters and how her mind works as she thinks about these kinds of issues. we don't have enough information, unfortunately, to assess these concerns effectively. we requested information relating to judge sotomayor's involvement with the fund, a typical question of all
nominees, but critically important for a supreme court nominee. we have not received information. inteed, we have received nine documents totaling fewer than 30 pages related to her 12 years in the organization. it's not possible for us to make an informed decision at this point on a relationship to an organization that seems to be outside the mainstream. what we know basically from publicly available information and what has been provided this committee is that this is a group that has time and again taken extreme positions on vitally important issues like abortion. in one brief, which was in support of a rehearing petition in the united states supreme court, a brief to the supreme court, the fund criticized the supreme court's decision in two cases that both the state and
federal government should restrict the use of public funds for abortion. the question of public funding of abortion. incredibly, the fund joined other groups in comparing these types of funding restrictions to slavery stating that, quote, just as dread scott refused citizenship to black people, these opinions strip the poor of meaningful citizenship under the fundamental law, closed quote. in their case, the equal protection clause of the united states prohibited restrixes on either federal or state -- restrictions on either federal or state funding on abortions. i think this is an indefensible position. we just don't know how much judge sotomayor had to do with the developing these positions of the fund but certainly she was an officer of it and involved in the litigation committee during most of this time, but we -- because we
don't have the information we've requested. we do know that the fund and judge sotomayor opposed reinstatement of the death penalty in new york based not on the law but on what they found to be the inhuman psychological burden it places on criminals. based on world opinion and based on evident racism in our society. what does this mean about how judge sotomayor would approach death penalty cases? i think she has affirmed death penalty cases but on the supreme court there's a different ability to redefine cases. and these personal views of hers could very well affect that. recently five judges of the supreme court decided based in part of their review of rulings of courts in foreign countries
that the constitution says that the united states did not execute a violent criminal if he is 17 years of -- 17 years and 364 days old when he willfully premeditatedly killed someone. they say that the constitution says that the state who has a law to that effect cannot do it. looking, quote, to evolving standards of decency that marked the progress of a maturing society, closed quote. now, this is what the court said as they set about their duty to define the united states constitution. five members of the supreme court said looking to, quote, evolving standards of decency that marked the progress of a
maturing society, closed court. we conclude the death penalty in this case violated the eighth amendment. and there are at least six or eight references in the constitution to a death penalty. and if states don't believe 18-year-olds should be executed or 17 they should prohibit it. and many, many states do. but it's not answered by the constitution. but five judges didn't like it. they consulted with world opinion and what they consider to be evolving standards of decency. and said the constitution prohibited the imposition of a death penalty in this case when it never had been considered to be so since the founding of our republic. i don't think that's a principled approach to jurisprudence. and that's what i am concerned about if we have another judge
like that on the bench. some other cases give me pause. for centuries, states and colonies, even before we became a nation have conclude that had individuals who commit serious crimes, felonies, forfeit their right to vote. particularly while they're in jail. it's a choice that states can make and have made between 1776 and 1821, 11 state constitutions contemplated preventing felons from voting. new york passed its first felon disenfranchise! law in 1821. when -- disenfranchise! law in 1821. 29 states had such provisions. by 2002 all states except maine and vermont disenfranchised
felons. for years these types of laws have been upheld by the courts through -- against a range of challenges. but in hayden v. pitaki in 2006 justice sotomayor said these violates the voting rights act of 1965 even though that act makes no references to these long standing and common state laws and even though they are specifically referenced in the 14th amendment to the constitution itself. in her view, with analysis of a few short paragraphs only, the new york law was found, quote -- she found -- she concluded that the new york law was, quote, on account of race, closed quote, and therefore it violated the voting rights act. it was on an account of race because of its impact and nothing more.
statistically it seems that in new york as a percentage of the population more minorities are in jail than nonminorities, therefore, it was concluded that this act was unconstitutional. i think this is a bridge too far. it would mean that state laws setting a voting age of 18 would also violate federal law because within the society in most of our country minorities would have more children under 18. and that would have an impact on them. so i don't any this can be the law, and as a majority of the colleagues on that court explained and did not accept her logic. actually, her opinion was not upheld. so i look forward to asking her about that. i'm aware that judge sotomayor
would say that she's acting as a strict constructionist by simply applying literally the 40-year-old voting rights act of 1965. well, i don't think so really. i remember when migueless strada, that brilliant hispanic lawyer that president bush appointed and was defeated after seven attempts of a filibuster in the senate couldn't do so. he said he didn't like the word strict constructionist. he preferred the term fair constructionist. the question is, is this a fair construction of the voting rights act that this would overturn these long established laws when no such thing was considered during the debate on the legislation? that historic law which limits felons voting are to be just
wiped out? , even allowing felons still in jail to vote? i don't think so, and neither did most of the judges who have heard these cases. with regard to the new haven firefighters' case, i will just say, madam president, that we will be looking to enter that case in some length. stuart taylor did a very fine analysis of it. in his writing at national journal he recognized that no one ever found that the examinations these firefighters took was invalid or unfair. as he has explained, if the belated, weak and speculative criticisms obviously tailered
no test will ever withstand a desperate impact lawsuit. well, that may or may not be judge sotomayor's objective, but it cannot be the law, says mr. stuart taylor in his thoughtful piece. the firefighters you see was told there was going to be a test that would determine row motion, that would determine eligibility for promotion. the tests were given at the time stated, and the rules had been set forth. but the rules were changed and promotions did not occur because the sotomayor court in a prefunctry decision concluded that too many nominees did not -- too many minorities did not pass the test. and no finding was made that the test was unfair.
so we'll be looking at that and quite a number of other matters as we go forward. we'll be talking about the question of foreign law, the question of this nominee's commitment to the second amendment, the right to keep and bear arms, the constitution said the right to bear arms shall not be enfringed. because once on the court each justice has one vote. it only takes five votes to declare what the constitution says, and that is an awesome power. and the judges must show restraint, they must respect the legislative body, they must understand that world opinion has no role in how to define the united states' constitution, for heaven's sake.
how can we interpret the meaning of words passed by an american legislature? world opinion defined in no objective way. just how the judge feels world opinion is, i don't think they conduct a world poll. what court's law did they examine in the -- around the world to help that influence their opinion on an american case? this is a dangerous philosophy, is all i'm saying. it's a very serious debate. there are many in law school that have a different fuel. as an intellectual case out there for an activist judiciary. for a judiciary should not be tethered to a dictionary definitions of words that judges ought to be willing and bold and take steps to advance the law, they would say, and to protect this or that group that's favored at this or that time. i think that's dangerous, i
think it's contrary to our great heritage of law, and i'm not in favor of that approach to it. madam president, i thank the chair and yield the floor. >> i spoke last week a little bit on this nomination and the constitutional responsibility of the senate to conduct a fair and i believe dignified hearing that will be held now on july 13, just a couple short weeks from now. as i said then and i'll say it again, she deserves the opportunity to explain her judicial philosophy more clearly and to put her opinions and statements in proper context. i think every nominee deserves that. but i don't think it's appropriate for any senator to preconfirm or prejudge judge sotomayor or any judicial nominee. this is an important process,
as i said, mandated by the same clause of the constitution that confers upon the president the right to make a nomination, and that is the duty of the senate to perform something called advice and consent. a constitutional duty of ours and it should be taken in a responsible, substantive and serious way. last thursday i raised three issues that i'll just reiterate briefly with regard to judge society nair's record. i'd like to hear more from her on the squope of the second amendment to the constitution and whether americans can count on her to uphold one of the fundamental liberties enshrined in the bill of rights, the right to keep and bear arms. i'd also like to hear more from judge sotomayor on the scope of the fifth amendment and whether the government can take private property from one person and give it to another person based on some elastic definition of public use. and i want to hear more from
her on her thoughts on the equal protection clause of the 14th amendment of the constitution which reads in part, no state shall deny to any person within its jurisdiction the equal protection of the laws. obviously the third issue is going to be very much in the news, probably again as soon as next monday when the supreme court hands down its decision in the ricky vs. destefano case, a case where judge sotomayor was on the panel before her court of appeals. that case, as you may recall, vo was firefighters who took a competitive race-neutral examination for promotion to lieutenant or captain at the new haven fire department. the bottom line is that the supreme court could decide the ricky case in a matter of days and the court's decision, i believe, will tell us a great deal about whether judge
sotomayor's philosophy in that regard to the -- as far as the equal protection clause is concerned is within the judicial mainstream or well outside of it. the ricky case is one way the american people can get a window into judge sotomayor's judicial philosophy. another way is to look at some of her public comments, her speeches, made on the duty and responsibility of judging. the remarks that have drawn the most attention are those in which she said, and i quote, i would hope that a wise latino woman with the richness of her experiences would more often than not reach a better conclusion that a white male who hasn't lived that life. as i said before and i'll say it again, there's no problem certainly for me and i don't believe any senator if she's just showing what i think is
understandable pride in her heritage as we all should as a nation of immigrants. but if the judge is talking about her judicial philosophy and suggesting that some people, some judges, because of their race, because of their ethnicity, because of their sex actually make better decisions about on legal disputes then that's something senators will certainly want to hear more about, this senator included. judge sotomayor made more remarks that received more scrutiny than they have received so far. for example, a speech in 2004 judge sotomayor embraced the remarks of judith resnick and marta minnow who each proposed theories about judging that her far different than the way that i think most americans think about these issues. most americans think that the
people elect their representatives, members of the house and senate, to write the laws and that judges, rather than rewriting those laws, should interrupt those laws in a fair and commonsense way, without imposing their own views on what the law should be. most americans think that when judges impose their own views on a case, when they substitute their own political preferences for those of the people and their elected representatives, then they undermine democratic self-governance. and they become judicial activists. professors resnick and minnow have very different ideas from i think the mainstream american thought on what a judge's job should be. their views may not be controversial in the ivory tower of academia. academics often encourage each other on provocative ideas so they can write about them and get published and get tenure.
but they don't want judges to experiment with new legal theories when it comes to judging. they have a more commonsense view that judges should follow the law and not the other way around. so where does judge sotomayor stand on some of these academic legal theories that i think are far out of the mainstream of the american thought? i'm not sure, but in her 2002 remarks she said this. she said, "i accept the proposition that as professor resnick describes it to judge is an exercise of power. and as professor minnow states, there's no objective stance but only a series of perspectives, no neutrality, no escape from choice in judging." if i understand her quotes directly, and there are some things i want to ask her about in this hearing, those are not the kinds of things i think most americans would agree with. they don't want judges who believe there is no such thing
as neutrality in judging because now tralt is an essential component of fairness. if you know you are going to walk into a courtroom only to have a judge predispose to decide against you because of some legal theory, then that's not a fair hearing. and we want our judges to be neutral and as fair as possible when deciding legal disputes. the american people i don't think want judges who believe that they have been endowed with some power to impose their views for what is otherwise the law. americans believe in the separation of powers, separation between executive, legislative and judicial power, and that junction should by definition show self-restraint and respect for the other branches of government. mr. president, i hope judge sotomayor will address these academic legal theories during her confirmation hearings and i hope she will claire fee in the
writings of professor resnick and minnow and others in which she finds admirable. i show she will respect the constitution more than these knew fangled legal theories and she will respect the law of the american people and not by life tenured federal judges who are not accountable to the people. mr. speaker, -- mr. president, i thank the chair and i yield the floor at this time. >> my colleagues, some of them, have begun their attacks on president obama's historic and incredibly qualified nominee to the supreme court, judge sonia sotomayor. they clearly decided for ideological reasons that they were going to oppose whoever president obama appointed before the hearings even started. we've heard people try to attach a lot of labels to judge soyo